The prevalence of mental health issues in the workplace emphasises the importance of employers having in place strategies to manage and monitor the health of their employees.

MIGA receives an increasing number of requests from our clients for assistance in managing workplace conflicts and disputes. It is often necessary to consider the potential for mental health issues to either develop or become aggravated in the event of a workplace investigation or disciplinary process which may be exacerbated if poorly managed.

Mental health issues in the workplace are often associated with common behavioural issues including repeated absences, poor performance, excessive risk taking or risk avoidance and complaints of bullying and harassment. Employers must manage such behavioural issues in a way that does not discriminate against their employees and potentially aggravate any mental health issues.

Often clients contact us after a workplace investigation or performance management process has already commenced and before any potential mental health issues have been considered. Workplace investigations in particular have the potential to cause additional stress which may result in a significant exacerbation of pre-existing mental health issues. It is therefore critical for investigations to be treated sensitively, for confidentiality to be strictly maintained and for adequate support and counselling to be offered to employees throughout the process.

Is performance management acceptable when mental health issues are involved?
The Fair Work Commission, Federal Court and Federal Circuit Court have jurisdiction over workplace disputes and closely scrutinise an employer’s investigative and disciplinary processes, particularly in instances of dismissal or resignation from employment when mental health issues are involved.

The presence of mental health issues may even provide an employee with a complete defence in instances of serious misconduct.

Accordingly, it is critical for an employer to engage in a proper performance management process when mental health issues are involved and if disciplinary action becomes necessary.

If a mental health issue is affecting an employee’s ability to perform the duties required of them in their role, it may be reasonable for an employer to commence a performance management process as follows:

  • Consider the terms and conditions of the relevant employment contract as they may provide guidance regarding the performance management process that has been agreed to by both parties
  • Ensure that all relevant incidents are documented in a format that can be provided to the employee as evidence of the concerns raised
  • Arrange an initial meeting with the employee and reassure them that confidentiality will be strictly maintained. The employee should also be invited to bring a ‘support person’ to the meeting (this can be a family member or friend, but preferably not a work colleague)
  • Maintain a record of all discussions held at the initial meeting in a format that can be provided to the employee following the meeting
  • The employee should be given the opportunity to respond to the concerns raised at the initial meeting, whether that be during or following the meeting. The employee should also be offered support and appropriate counselling following the meeting
  • Depending on the terms and conditions of their employment contract and the nature of the employer’s concerns, it may be necessary to arrange a follow-up meeting after a reasonable review period to assess whether there has been any improvement in the employee’s behaviour and/or performance.

Is it necessary to address mental health issues when performance management is not required?
It is important to note that there is no obligation on an employee to disclose a mental health condition to their employer or prospective employer(s). This presents a difficulty for employers as they have an obligation to support their employees and if necessary, allow for reasonable adjustments in the workplace to avoid aggravating any mental health issues. Reasonable adjustments can include flexible working hours, alternate duties and offering additional supervision, support and counselling.

If an employee has disclosed a mental health issue in the absence of any performance management issues, it is still reasonable for an employer to engage in open dialogue with them and to offer them support and the opportunity to obtain a report from their treating psychologist or psychiatrist in an effort to avoid aggravating their condition in the workplace.

MIGA’s Legal Services team can provide assistance and guidance to our clients when dealing with workplace investigations, performance management processes and the appropriate management of mental health issues in the workplace.

Information in this Bulletin does not constitute legal or professional advice.  Call us if you need advice on any of the issues covered in this article.

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